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Executive 2 Notes

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This is an extract of our Executive 2 document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Oxford students.

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The Executive

1. The Role and Powers of the Executive

* PM --> Cabinet --> Ministers --> Civil Servants

* The PM provides the individual leadership of the majority party, and the Cabinet provides the collective leadership of that party. It was thought that in Thatcher and Blair's terms, the Cabinet government had been transformed into a PM government, with major decisions being taken by the PM in consultation only with a small group of senior colleagues. Brown restored the formality of Cabinet government, but his authority was diminished from the start by miscalculations and political crises.

* The PM can exercise influence over the Cabinet, but their main political strength comes from the Cabinet and from the parliamentary party. If he loses the confidence of both he will be in a vulnerable position, even though he may be the choice of the electorate. The PM has the power to:

* 1. Make all appointments to ministerial office, both within and outside of Cabinet.

* 2. PM controls the machinery of central government, deciding how tasks should be allocated to departments, and whether departments should be created, amalgamated or abolished.

* 3. PM presides at Cabinet meetings, and can therefore control discussions and decision making by setting the order of business, deciding what is to be discussed, and taking the sense of the meeting rather than counting the votes of the Cabinet members.

* 4. The PM's powers are reinforced by the doctrine of collective responsibility. Ministers must not criticize government policy in public and must be prepared to defend it. As the PM can make decisions consulting only a few colleagues and not the whole Cabinet, this is an important power for silencing criticism.

* 5. PM has a more regular opportunity to present and defend the government's policies in Parliament and elsewhere. He is responsible also for keeping the Queen informed on Cabinet's handling of affairs.

* Cabinet (usually 22 or 23 members) is constrained both administratively and politically, but not by statute. There must be a Home Secretary, Foreign Secretary, Lord Chancellor and Chancellor of the Exchequer. The number of salaried posts is limited by statute to 22. They must all be members of Commons or Lords.

* Cabinet committees relieve the burden on the Cabinet by dealing with business that does not need to be discussed at full Cabinet, and supports the principle of collective responsibility by ensuring that a question will be fully considered and the final judgement sufficiently authoritative to ensure that the Government as a whole can be expected to accept responsibility for it.

* There is concern that consulting with just a few Cabinet ministers is reducing the power of the Cabinet. Before the invasion of Iraq in Blair's government, the Cabinet Committee on Defence and Overseas Policy did not meet, excellent quality papers were written but not discussed, and decisions were taken informally by PM, Foreign Secretary and the Defence Secretary.

* Cabinet papers are protected from disclosure under the Freedom of Information Act 2000, and are only made available as historical records for public inspection after 30 years. One justification is that anything which damages the collective unity and integrity of the Cabinet damages the good government of the country - this goes further than issues of just national security and seeks to make decision-making secret. Some think that good government in a democracy ought to be more open.

* Ministers must ensure that no conflict arises or appears to arise between their private interests and their public duties. They should, on taking office, provide their Permanent Secretary with a full list of interests that might be thought to give rise to a conflict.

* Civil servants are servants of the Crown who work in a civil capacity, and do not hold a political or judicial office, or other offices in which special provision has been made.

* Civil servants are employed at the pleasure of the Crown - but must also have terms of service which are contractually enforceable.

* There is a desire for open government and public right of access to official information, because of the insights it provides into the conduct of government, and therefore the enhanced opportunities it gives to politicians, the press and the public to hold the government to account. The Freedom of Information Act creates a general right of access to information upon written request made to a public authority - if someone makes a request they are entitled to be told in writing whether the authority holds information of the type specified in the request, and if they do, to have the information communicated to them. An authority may refuse to comply where the cost would be excessive, or where the application is vexatious. Some may refuse because the public interest is served better by keeping the information secret, or because they fall under a category with absolute exemption.

2. The Convention of Ministerial Accountability

* Those who govern must be accountable, or responsible, to those whom they govern, as the power to govern derives directly from electors' votes.

* Accountability is "A relationship between an actor and a forum in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences." Bovens. Conveys an image of transparency, equity, democracy, efficiency, responsiveness, responsibility, integrity and trustworthiness. Accountability is about the authorities being held accountable by their citizens. Consequences could involve fines, disciplinary measures, civil remedies, penal sanctions, a calling for resignation, having to render account in front of TV cameras, the disintegration of public image and career etc.

* Different types of accountability:

* Political: Accountability works in the opposite direction to the chain of delegation. Voters->
Popular representative->Cabinet ministers->Civil servants->Administrative Bodies

* Legal

* Administrative: Quasi-legal forums such as auditors, inspectors, controllers, ombudsmen.

* Professional: Professional peer accountability.

* Social: moral (voluntary) accountability to interested parties, charities etc.

* Why accountability?

* Democratic: Accountability controls and legitimizes government actions by linking them effectively to the democratic chain of delegation.

* Constitutional: Accountability is essential in order to withstand the ever present tendency towards power concentration and the abuse of powers in the executive.

* Learning Prospective: Accountability provides public office holders and agencies with feedback based inducements to increase their effectiveness and efficiency. Legal Responsibility:

* Enforced in the Courts. Government must be conducted according to the Law. The Queen may not personally be sued or prosecuted in the courts, but servants of the Crown who commit crimes or civil wrongs are subject to the jurisdiction of the courts. Superior orders are no defence to such proceedings. Collective Responsibility:

* Stated by Lord Salisbury as "For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues...It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet who after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established."

* The Prime Minister stated in 2007 that: "Collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained."

* The PM and other ministers are collectively responsible to Parliament for the conduct of national affairs - he is unlikely to be forced to resign if he retains a majority in the House. When a PM dies or resigns, then all ministerial offices are at the disposal of the new PM. If members of the Commons seek to censure an individual minister, the government will rally to his defence: collective responsibility is a means of defending an incompetent or unpopular minister. Ministers share in the collective responsibility of all ministers. It is in the nature of collective responsibility that there is some degree of secrecy in presenting a united front, concealing the details - leakages are common, and there is more pressure to give way to a more open government. Freedom of Information Requests cannot be made for Cabinet papers in the interest of collective responsibility.

* The doctrine serves a number of purposes: reinforces party unity, prevents backbench MPs inquiry too far into government processes, supports authority of PM.

* It may be impossible for the Cabinet to maintain a united front. 'Agreements to differ' can occur to allow short lived departures from the principle of unanimity in the special circumstances of a coalition government. Individual Responsibility:

* A minister must answer to Parliament for his department - praise and blame are to the minister, not the civil servants who work for him. Civil servants are not directly responsible to government but are to ministers for their own actions and conduct. "Civil servants are servants of the Crown, accountable to the duly constituted government of the day, and not servants of the House."

* Ministers must appear on the days to which their department is rota'd to appear, in order to answer questions. They can refuse to answer if it falls outside of their responsibility, to answer would be contrary to public interest to answer, or the expense of obtaining the information requested would be excessive.

* There are a number of different scenarios which may render a minister responsible for the actions of his civil servants. 1. Where the civil servant has carried out an explicit order given by the minister- the minister must accept responsibility. 2. Where the civil servant has acted in accordance with policy laid down by the minister - the minister must accept responsibility. 3. Where a civil servant makes a mistake which is not on an important issue, the minister must accept responsibility even though he is not personally blameworthy. 4. Where a civil servant takes action which the minister disapproves of, had no previous knowledge of, and the conduct is reprehensible, then the minister is not bound to endorse what he believes to be wrong, but is constitutionally responsible to parliament for the fact that something has gone wrong.

* There is a difference between constitutional accountability and personal culpability accountability is something a minister can never escape from, for he must always answer questions and give an account to parliament of his department's action, but responsibility only arises where he is to blame himself.

* Ministerial resignations may occur if a minister's own conduct makes it too difficult for the individual to preform his duties in the face of continuing criticism in the media.

* There is a tension between government power and democratic accountability. A minister is accountable to Parliament for everything which occurs in a department: the duty, which may not be delegated, is to inform Parliament about policies and decisions of the department, unless secrecy prevails. If something goes wrong, the minister owes it to Parliament to find out what has happened, ensure necessary disciplinary action, and take steps to avoid a recurrence. A minister is responsible only for broad polices, the framework of administration and issues in which he has been involved, not for all departmental affairs. Since decision making may be delegated, he is not responsible for what it done by civil servants within the authority assigned to them.

* The Ministerial Code now binds both members of Parliament, not as legislation, but having been endorsed by both Houses and the PM it has great weight.

* The role of the Courts:

* The courts ought not to determine the accountability of ministers to Parliament - this is part of the reason why the area receives no legislation. Where a statutory function is vested in a minister, he or she may not adopt a policy whereby decisions are made by another minister. Where executive decisions are challenged in courts by judicial review, the courts must decide whether there are any legal grounds which make the decision vulnerable to judicial review judicial review and ministerial responsibility serve different purposes and are no mutually exclusive.

* If the executive does not provide open and honest answers to questions put to them, then a greater case may be made for legislation to be made in this area, bringing within the jurisdiction of the courts. The current principles depend upon political acceptance and the political pressures brought about by a breach.

3. Is the Executive subject to Law?
a. General

* Entick v Carrington: The King's Messengers, acting under a warrant issued by the Secretary of State, broke into the claimant's house and carried off his papers. The action was part of an investigation into certain seditious articles. The plaintiff sued the Messengers for trespass. They claimed to have acted lawfully under the Secretary of State's warrant. Held: The executive cannot lawfully assume powers which are not known to the courts (statute/common law)

* M v Home Office: A citizen of Zaire sought political asylum, which was refused, as was his application for leave to bring judicial review proceedings. A date was set for his removal and on that day, shortly before he was due to be removed, he made a renewed application to the Court of Appeal for leave to move. The judge understood counsel for the Home Secretary to have given an undertaking that the removal would not go ahead while the application was being considered. However his removal went ahead. When the judge heard that it had, he ordered the Secretary of State to organize his return to the jurisdiction. Home Office officials took steps to comply with the order, but the Secretary of State over-ruled them in reliance on legal advice that the order had been made without jurisdiction, being a mandatory interim injunction against an officer of the Crown. Held: The Secretary of State had not been entitled to claim Crown immunity, since an action could be brought against him personally for a tort committed or authorized by him in his official capacity, and an interim could be granted against him in that capacity. The Crown itself could not be found in contempt, but a government department or a minister could. The injunction had been granted against the Secretary of State in his official capacity, and the department for which he was responsible was in contempt. Accordingly, the appropriate finding was that the Secretary of State for the Home Department was in contempt. The argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish that proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the civil

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